Domestic Intelligence and the Boston Bombings
Interviewee: Richard A. Falkenrath, Shelby Cullom and Kathryn W. Davis
Adjunct Senior Fellow for Counterterrorism and Homeland Security
Interviewer: Jonathan Masters, Deputy Editor
April 25, 2013
The Boston Marathon bombings offer lessons for future U.S. counterterrorism
efforts, says CFR's Richard Falkenrath, former NYPD deputy commissioner for
counterterrorism. He says the case raises new questions about the
suitability of intelligence operations because of the fact that one of the
suspect bombers was interviewed by the FBI but was able to carry through
with an attack. Falkenrath says that while more permissive foreign
intelligence-gathering techniques used by U.S. authorities are focused
abroad, "we're instead reliant on more restricted domestic intelligence
techniques to identify you before you attack."
A police officer monitors video feeds in a security facility. (Photo: Lucas
Jackson/Courtesy Reuters)
Some policymakers in Washington are already prepared to label these bombings
an intelligence failure. What's your take?
Of course it is an intelligence failure. It is every investigator's worst
nightmare--to have your eyes on a person, allow them to drop from your
attention, and then they carry out a terrorist attack. But what we do not
yet know is the cause of this failure. Was it incompetence or did it arise
from the restricted authorities and resources of our federal law enforcement
and domestic counterterrorism apparatus?
Many of the facts of the case are still unknown. It is reported that the
Russian government informed both the FBI and CIA of their suspicions of
Tamerlan Tsaraev. Two FBI agents interviewed him and have to live with the
consequences of his subsequently carrying out an attack. It's not the first
time this has happened. There was David Coleman Headley (aka Daood Sayed
Gilani), a Pakistani American, who conducted surveillance on behalf of the
[Lashkar-e-Taiba] terrorists that attacked Mumbai in 2008--his ex-wife had
called in saying he was a terrorist, and he was cursorily investigated and
then went off to participate in this major attack.
The problem is inherent in our system of government, which does not have a
domestic intelligence service. We have domestic law enforcement that
performs certain intelligence and national functions, but so long as you
want to have a system in which the activities of your domestic law
enforcement agencies are tightly circumscribed by law and jurisprudence, you
will have these sorts of mistakes and tensions.
There is no open mandate in the U.S. system for any security agency at the
federal level to conduct unfettered surveillance of people it thinks to be a
threat. In part, that comes from the basic structure of our government. I
learned a long time ago that the [constitutional] Founders did not design
our system of government to maximize the efficiency of the security
agencies. And it also comes from abuses and scandals that we've had in our
past, during World War I, World War II, and the Cold War.
Would you advocate for a domestic intelligence service?
Not in isolation. If you created a domestic intelligence service, but left
all the underlying legal policy and jurisprudential constraints in place,
then it would be a wasted bureaucratic reform. My focus has always been not
on creating organizations but on rethinking or revising, where appropriate,
the constraints that exist for domestic law enforcement at the federal
level.
There have been some improvements to this underlying legal framework--the
Patriot Act of 2001, for instance, or FISA Modernization Act of 2007--but
the reform to our domestic counterterrorism program has not been as
comprehensive or aggressive as people think. Looking ahead, an effort to
simplify and liberalize the Attorney General Guidelines for Domestic FBI
Operations or the FBI's own Domestic Investigations and Operations
Guide--two documents that currently run at the hundreds of pages--would have
a far greater beneficial impact, far sooner, than creating a new agency.
FBI and other intelligence officials are responding to questions about how
they handled this inquiry from Russia in 2011 regarding one of the suspects.
Can you briefly describe how these types of inquiries from foreign
governments are handled by federal authorities?
If it's pertaining to a U.S. person, it will be handled by the FBI. And
depending on the information that comes in, from whom it comes in, how
specific it is, how credible it is deemed, the FBI will open what is called
a preliminary investigation. And in the preliminary investigation, the types
of investigative steps the bureau is permitted to use are rather limited and
typically include an interview--which happened in this case--and an open
source records check of the person and a check against law enforcement
records to see if there is any other derogatory information on him or any
other existing cases.
If he has no background in the system, then the Bureau will need to uncover
some additional derogatory information to proceed to higher levels of
investigation. And those higher levels are a field investigation and a full
field investigation. And as additional information suggesting the person may
pose a threat or be engaged in criminal activity or committed a crime comes
in, the Bureau is permitted to escalate its investigative response to more
intrusive techniques.
Do you think these guidelines need to be relaxed or amended?
First of all, they've always got some discretion within these guidelines.
And it's a complex but well-exercised process by which the supervisors in
the FBI evaluate the information coming in on all the different cases they
have--which number in the tens of thousands--and decide, based on the
allegation and the credibility and specificity of the information, which to
proceed on. So there's a large element of judgment there; and with the
benefit of hindsight, of course, that judgment is going to be questioned.
What surprised you about this case?
I was surprised [the bombing suspects] didn't leave the country--that was my
main one. They had sufficient time to get out, and they underestimated the
speed with which they would be identified and dealt with. We were lucky, in
the sense that we were still able to get them here in the country and
relatively quickly. After forty-eight hours without an arrest, I began to
get very nervous that we were going to lose them entirely.
What are some of the lessons that we can take away at this point?
First, the emergency response struck me as quite good, and we were lucky to
have emergency medical personnel on the scene in numbers, and then to have
proximity to some of the best hospitals in the world. So that was a success.
The processing of the crime scene was, as far as we can tell, fairly rapid
given the complexity of the scene. And, although the after-action [review]
for that is going to come out and we'll find out more, it seems to me it was
well done and the speed with which the government acquired imagery of the
perpetrators was pretty good.
The manhunt is hard to second-guess, based on what we know. There were a lot
of hard decisions that had to be made, but it's useful to remember some of
the precedents here, one of which is London, July 2005, where an innocent
man was shot to death by police acting on the suspicion that he was one of
the assailants in a failed bombing. And what that shows is there is reason
to be wary of the threat to public safety from thousands of law enforcement
officers on high alert trained to shoot to kill. So I don't second-guess the
request on the part of the government for people to remain inside, which was
certainly made out of an abundance of caution.
Obviously, electronic surveillance played a central role in tracking and
identifying these assailants--you were a big proponent of this technology
when you were at NYPD, correct?
It's just basic good practice now. And this technology has come a long way.
My guess is that the police officers in Boston had a very laborious
time-consuming video canvas, where they were going to each individual
establishment and pulling either the tape or the DVR and going through it
frame by frame. The system in New York has fairly high-quality coverage in
lots of areas, but most importantly an automated ability to perform video
canvases and video analyses, which would substantially speed up the video
canvassing process.
On the prevention side, do we need more outreach with some of these Muslim
minority communities? What types of greater prevention would you like to
see?
If anything, you could argue that an incident like Boston reaffirms the case
for preventive law enforcement activity, which aims to find potential
perpetrators and remove them from the scene. The key for most of these cases
is good old-fashioned police work, meaning the development of sources in
communities of concern, and the aggressive use of electronic surveillance to
generate leads.
Community outreach as a way of finding the bad guys has only seen a few
success stories, so I'm not convinced it's the best way to do things,
particularly for uncovering those interested in concealing their tracks.
What [community outreach] does, however, is generate a lot of
score-settling--people carrying out grudges against someone they have a beef
with by ratting them out to law enforcement. So while I have no problem with
better relations between law enforcement and all communities, I wouldn't do
it just for counterterrorism purposes.
One of the basic problems is: Our best techniques for generating the first
lead in major terrorism cases come from abroad, either in the form of
liaison reports such as the Russian report--many different countries will
periodically tell us about people they're worried about and they believe to
be in-country--or from the exploitation of foreign intelligence, the
collection of which is largely unfettered.
We have a lacuna at home, which is: if you are an individual at home without
any foreign connections--no foreign travel, no foreign communications, never
had an encounter with a foreign government--our more permissive [foreign]
intelligence gathering techniques have no chance of coming across you, and
we're instead reliant on more restricted domestic intelligence techniques to
identify you before you attack. That's not a problem that can be solved in
our system of government; it's a tension that needs to be managed and
addressed by professionals on the inside of the community.
How well do U.S. intelligence and law enforcement agencies cooperate with
foreign governments?
It's incredibly varied, and it's rarely insulated from the broader bilateral
relationship that we have. So in the case of Russia, it's particularly
acute, since we've had a long difference of opinion with them--maybe twenty
years--over whether the secessionist movements in the Caucasus should be
deemed terrorists (which of course the Russian government would like us to,
and the U.S. government has frankly been reluctant to do). That's
illustrating a tension. Furthermore, U.S.-Russian relations are at the
moment very bad, so this would color how the government interprets the
information they provide us.
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